SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Cooke (a pseudonym) v The Queen |
Citation: | [2022] ACTCA 44 |
Hearing Date: | 17 May 2022 |
DecisionDate: | 30 August 2022 |
Before: | Mossop, Loukas-Karlsson and Rangiah JJ |
Decision: | See [70] |
Catchwords: | CRIMINAL LAW – APPEAL – PRACTICE AND PROCEDURE – appeal against sentence – whether sentencing judge erred by considering strength of prosecution case when determining appropriate discount for plea of guilty – no submission that case was “overwhelmingly strong” – strength of prosecution case only relevant to s 35(4) for guilty plea discount – specific error – appeal allowed – re-sentence |
Legislation Cited: | Crimes Act 1900 (ACT) s 61 |
Cases Cited: | Alan (NT) Alumina v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 |
Parties: | Cooke (a pseudonym) ( Appellant) The Queen ( Respondent) |
Representation: | Counsel S McLaughlin ( Appellant) K McCann ( Respondent) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecution ( Respondent) | |
File Number: | ACTCA 54 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the Australian Capital Territory Before: McWilliam AJ Date of Decision: 24 September 2021 Case Title: R v Cooke (a pseudonym) Citation: [2021] ACTSC 249 |
MOSSOP J:
I agree with Loukas-Karlsson J.
LOUKAS-KARLSSON J:
Introduction
On 24 September 2021, the appellant was sentenced to 23 months imprisonment with a non-parole period of 18 months (R v Cooke (a pseudonym) [2021] ACTSC 249 (primary judgment)).
The offender was sentenced for a single count of act of indecency with a person under the age of 10 years contrary to s 61(1) of the Crimes Act 1900 (ACT)…
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- Cooke (a pseudonym) v The Queen [2022] ACTCA 44
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- [2022] ACTCA 44
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CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the sentencing judge erred by considering the strength of the prosecution case when determining the appropriate discount for the appellant's guilty plea. Specifically, the appeal questioned whether the strength of the prosecution case was a permissible consideration for the guilty plea discount, particularly in circumstances where the prosecution did not submit that the case was "overwhelmingly strong" and therefore s 35(4) of the *Crimes (Sentencing) Act 2005* (ACT) did not apply. The appellant also raised grounds concerning the overall excessiveness of the sentence and the adequacy of reasons for the non-parole period.
The Court of Appeal allowed the appeal, finding that the sentencing judge had made a specific error of the kind identified in *House v The King* by taking into account the strength of the prosecution case when determining the discount for the guilty plea. The Court held that while the strength of the prosecution case is relevant under s 35(4) of the *Crimes (Sentencing) Act 2005* (ACT) for an "overwhelmingly strong" case, it is not a permissible consideration for reducing the guilty plea discount in other circumstances. The respondent conceded that if this was found to be an error, the sentencing discretion would need to be exercised afresh.
Consequently, the Court of Appeal allowed the appeal, set aside the sentence imposed by the primary judge, and remitted the matter for re-sentencing. The Court noted that it was strictly unnecessary to consider the other grounds of appeal, although factors relevant to manifest excess were considered in the resentencing exercise.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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